This Civil Revision Petition has been filed by the petitioner against the fair and decreetal order passed in CMA No.1 of 2016 dated 17.09.2016 on the file of the 1st Additional District Judge, Madurai.
2. The petitioner is the third defendant in O.S.No.203 of 2013 and petitioner in CTOP No.1 of 2013 on the file of the III Additional Subordinate Judge, Madurai and Appellant in CMA No.1 of 2016 on the file of the Principal District Judge, Madurai. The respondent is the plaintiff in O.S.No.203 of 2013 and respondent in CTOP No.1 of 2013 on the file of the III Additional Subordinate Judge, Madurai and respondent in CMA No.1 of 2016 on the file of the Principal District Judge, Madurai.
3. The facts of the case is as follows -
3(A) The respondent is the owner and landlord of vacant land of suit property. The vacant land was originally leased out to M/s.Caltex (India) Ltd. through lease deed dated 28.02.1963 for a period of 10 years. On 01.12.1972, on expiry of the lease, it was further extended for 20 years, with an option to renew for a further period. In the meanwhile, M/s.Caltex (India) Ltd. was taken over by the Government of India and Hindustan Petroleum Corporation Limited (hereinafter referred to as HPCL) came into existence with a lease hold right. The respondent requested HPCL to handover the vacant possession of land on expiry of lease. HPCL informed the respondent that they have an option to renew the lease for a further period of twenty years. After discussions and exchange of correspondences, the lease was renewed for a further period of twenty years from 01.12.1992 to 30.11.2012 and the rent was fixed at Rs.13,200/- per month but the lease was registered on 14.11.2005 extending the lease period from 01.12.1992 to 30.11.2012. The respondent, from 28.11.2011 was informing the HPCL to handover the vacant land on 30.11.2012, i.e. on the expiry of lease, as he is not willing to renew and extend the lease further on expiry of same. HPCL in reply to the request of the respondent informed that they have an option for renewal and requested the respondent to extend the lease.
3(B) The respondent sent a notice dated 24.11.2012 and called upon the HPCL to vacate and handover the vacant possession as per Clause 3 (b) of the Agreement. HPCL sent a reply dated 11.12.2012 informing that they are entitled to protection under Section 9 of the Tamil Nadu City Tenants Protection Act. The respondent sent a rejoinder dated 17.02.2013 denying that HPCL is entitled to protection under Section 9 of the Tamil Nadu City Tenants Protection Act and called upon HPCL to pay damages @ Rs.1,00,000/- per month.
3(C) In the circumstances, the respondent filed O.S.No.203 of 2013 against HPCL to quit and deliver the possession of land and also to pay a sum of Rs.50,000/- per month for damages from 01.12.2012 and to pay the cost of the suit. According to the respondent, after expiry of lease on 30.11.2012, the possession of HPCL is illegal and they are tresspassers. The respondent have stated that HPCL is not a tenant as per the judgment of the Hon'ble Apex Court followed in the judgment of this Court reported in 2012 (1) MLJ 1105 [Bharat Petroleum Corporation Ltd. v. R.Ravikrishnan]. The first and second defendants in the suit are (i) HPCL Rep.by its Chairman and Managing Director and (ii) HPCL Rep.by its General Manager respectively.
3 (D) The petitioner filed written statement denying various averments made by the respondent and admitted the taking over of M/s.Caltex (India) Ltd. and entitlement of lease, as per the lease subsisting in favour of M/s.Caltex (India) Ltd. The petitioner has spent Rs.50 lakhs to put up construction. The petitioner denied that they are not in physical possession of the suit property. As per the agreement, the petitioner is entitled to operate outlet through a dealer. The petitioner is not a tresspasser and he, as a tenant is entitled to benefits under Section 9 of the Tamil Nadu City Tenants Protection Act 3 (E) On the very same averments, the petitioner filed CTOP 1 of 2013 before the learned III Additional Subordinate Judge, Madurai and prayed for a direction to direct the respondent to execute the sale deed for the value to be fixed by the Court under Section 9 of the Act. The petitioner has spent Rs.20 lakhs for levelling the ground and suit vacant land is the minimum land required to carry on the business of the petitioner. The respondent filed counter in CTOP and denied various averments made by the petitioner. The respondent reiterated the averments made in the plaint. The respondent prayed for dismissal of CTOP No.1 of 2013 reiterating that the petitioner is not a tenant as per Section 2 (4) of the Act and as per the judgment of the Hon'ble Apex Court and various judgments of this Court. Before the learned Judge, Sales officer of the petitioner was examined as PW1 and Exs.A1 to A9 were marked as documents. The respondent was examined as RW1 and Exs.B1 to B29 were marked. The learned Judge, considering the averments made in the pleadings, oral and documentary evidence and judgments relied on by the parties, dismissed the CTOP No.1 of 2013 vide on 24.06.2015 filed by the petitioner. Against the said judgment and decree, the petitioner filed CMA No.1 of 2016 on the file of the First Additional District Judge, Madurai. The learned Appellate Judge independently considering the materials on record, judgment of the Trial Judge and judgments relied on by the respondent, dismissed CMA No.1 of 2016 on 17.09.2016.
4. Against the order of dismissal dated 17.09.2016 in CMA No.1 of 2016, the present Civil Revision Petition is filed.
5. The learned counsel for the petitioner contended that -
(i) the petitioner is a leasee as per the agreement and as a tenant, he is entitled to benefits under Section 9 of the Tamil Nadu City Tenants Protection Act.
(ii) the petitioner is a tenant holding over after the expiry of lease as per
Section 116 of Transfer of Property Act as per judgment of the Hon'ble Apex Court.
(iii) As per Clause 4 (a) of the lease agreement, the petitioner is entitled to carry on business through dealer and the dealer has no right or interest over the lease or superstructure.
(iv) The petitioner is in possession of the suit property through their dealer and is a tenant as per
Section 2 (4) of the Tamil Nadu City Tenants Protection Act. All the Petroleum Companies through out the country are carrying on business only through dealers.
(v) The lower Appellate Court failed to appreciate the evidence let in by the parties.
(vi) As per the agreement, the petitioner is liable to pay the rent. As per the definition of
Section 2 (4)(i) of Tamil Nadu City Tenants Protection Act, a person who is liable to pay rent is a tenant. In view of this definition, it is not essential for the petitioner to fulfill the requirements of
Section 2 (4) (ii) (b) of the Act. The respondent in the suit notice as well as in the pleadings admitted the landlord ? tenant relationship. In view of such admission, the petitioner is entitled to the benefit under Section 9 of the Tamil Nadu City Tenants Protection Act. The lower Appellate Court has failed to appreciate the scope of said section.
(vii) The respondent did not state that the petitioner is not in physical possession. The Courts below failed to consider the law in respect of physical, legal and constructive possession.
(viii) The benefit under
Section 9 of the Act is to protect the interest of the tenant. The petitioner's predecessor put up superstructure and the petitioner has invested huge amounts and is also paying property tax for the superstructure.
(ix) The respondent has not given three months notice before filing of the suit as per Section 11 of the Tamil Nadu City Tenants Protection Act.
6. Per contra, the learned counsel appearing for the respondent contended that -
(i) the petitioner is a tresspasser after the expiry of the lease agreement and their possession is illegal and the petitioner is not a tenant holding over.
(ii) the petitioner is not in physical possession of the suit property. The dealer of the petitioner is in possession and carrying on business.
(iii) the petitioner is not a tenant as they have failed to fulfill the ingredients of
Section 2, sub-
section 4 (ii) (b) of the Act.
(iv) the entitlement of a tenant to claim the benefit under
Section 9 of the Act was considered by the Hon'ble Supreme Court and it has been held that a tenant like the petitioner who is not in physical possession of the property when the property is in possession of dealer of tenant is not a tenant as per provisions of Section 2 of Tamil Nadu City Tenants Protection Act.
(v) the Hon'ble Apex Court held that Petroleum Companies cannot be held to be in physical possession and not entitled to benefit of
Section 9 of the Act if the property is in the possession of dealer. The judgment of the Hon'ble Apex Court was followed by the Division Bench of this Court as well the Single Judge of this Court wherein in many cases, the petitioner themselves are parties.
(vi) the judgment of Hon'ble Apex Court as well as this Court are squarely applicable to the facts of the present case.
(vii) the respondent,from the year 2011 itself informed the petitioner that the lease will not be extended after expiry, i.e. 30.11.2012 and called upon the petitioner to deliver and handover the vacant possession of the suit property.
(viii) In view of the various correspondences, the contention of the petitioner that the respondent failed to give three months notice under
Section 11 of the Act is without merits and contrary to the facts.
7. The learned counsel appearing for the respondent relied on the following judgments to substantiate his contention -
2004 (8) SCC 579 [Bharat Petroleum Corpn. Ltd. and another v. N.R.Vairamani and another] 1999 (4) SCC 450 [Hindustan Petroleum Corporation v. Dolly Das] 2011 (5) CTC 437 [Bharat Petroleum Corporation Ltd. v. R.Ravikrishnan] 1997 (1) CTC 367 [Hamsa Patel v. S.Balakrishnan] 2011 (1) MWN (Civil) 387 [Hindustan Petroleum Corporation Limited v. B.S.Ojeeha] 2002 (2) CTC 21 [Hindustan Petroleum Corporation Limited v. Keyaram Hotels (P) Ltd.] 2003 (10) SCC 705 [S.R.Radhakrishnan and others v. Neelamegam] 2011 (4) L.W 937 [Indian Oil Corporation Ltd. & another v. Lakshmi Subrahmanyam] 2005 (2) CTC 401 [Hindustan Petroleum Corporation Ltd. v. Devaraj Chordia] 2001 (1) CTC 40 Unreported judgment dated 19.04.2013 made in S.A. (MD) Nos.790 & 791 of 2012
8. I have carefully perused the materials on record, judgment of courts below, judgments relied on by the learned counsel for the respondent and arguments relied on by the parties. The issues to be decided in this Civil Revision Petition are -
(a) Whether the petitioner is a tenant as per
Section 2 (4) of the Act and whether he is entitled to the benefits of
Section 9 of the Act.
(b) Whether the petitioner is entitled to three months notice as per
Section 11 of the Act.
9. The respondent is the owner and landlord of the vacant land of the suit property. Originally, the vacant land was leased out to M/s.Caltex (India) Ltd. who put up necessary superstructures and was carrying on business of selling petroleum products. M/s.Caltex (India) Ltd., was acquired by act of Parliament and HPCL came into existence. After negotiation, the respondent extended the lease from 01.12.1992 to 30.12.2012. When the lease was about to expire, the respondent informed the petitioner that he is not willing to extend the lease and called upon the petitioner to vacate and deliver vacant possession. The petitioner informed the respondent that they are entitled to extend the lease for a further period of twenty years. After correspondences, the respondent, by notice dated 20.11.2012, through his advocate terminated the lease and called upon the petitioner to deliver vacant possession on the expiry of lease on 30.11.2012. The petitioner sent a reply dated 11.12.2012 claiming benefit of Section 9 of the Tamil Nadu City Tenants Protection Act.
10. In the above circumstances, the respondent filed O.S.No.203 of 2014 for eviction of the petitioner. On receipt of summons, the petitioner filed CTOP No.1 of 2013 under Section 9 of the Tamil Nadu City Tenants Protection Act for a direction to the respondent to sell the vacant land on the price fixed by the Court. The said CTOP as well CMA filed by the petitioner were dismissed.
11. From the materials, it is seen that the petitioner is not in physical possession of the suit property. They are in constructive possession through their dealer. The lease in favour of the petitioner expired on 30.11.2012 and the respondent from one year earlier to that date has informed the petitioner that he is not willing to extend the lease and called upon the petitioner to handover the vacant possession on expiry of lease. On 30.11.2012, the lease expired and it was not extended further. The petitioner contended that they are the tenant holding over as per
Section 116 of the Transfer of Property Act. On the other hand, it is the case of the respondent that the petitioner is only a tresspasser and not a tenant holding over. Both the issues were considered by the Hon'ble Apex Court as well as the Division Bench and Single Judge of this Court in various cases and held against the Petroleum Companies like petitioner. In the judgment, it has been categorically held that Petroleum companies, similarly placed like petitioner namely who were in possession of vacant land leased out to them through dealer were not tenants as
Section 2 (4) of Tamil Nadu City Tenants Protection Act, as they are not in physically possession. The courts have held that they are tenants, as per the lease granted to them but they are not entitled to the benefit under Section 9 of the Tamil Nadu City Tenants Protection Act as they failed to fulfill the inclusive clause in
Section 2 (4) (ii) (b) of the Act. The Court also have held that after expiry of lease, the Petroleum Companies are not tenants holding over but they are only tresspassers. In view of the said ratio, the Courts have held that the Petroleum Companies are not entitled to notice under
Section 11 of the Act as they are not tenants.
12. As rightly pointed out by the learned counsel for the respondent, in some of the cases, the first defendant, HPCL represented by its General Manager was the party. Inspite of the same, the petitioner and other Petroleum companies are repeatedly invoking the provision under
Section 9 of the Act. This stand and attitude of the Petroleum Companies were deprecated by Hon'ble Apex Court which held that being a Central Government Organisation ought to have surrendered the vacant possession to the landlord like respondent instead of dragging them to Court.
13. In view of the well settled preposition, as evidenced by the judgments above mentioned, relied on by the learned counsel for the respondent, I am not extracting the paragraph referred to by the learned counsel for the respondent. From the above judgments, it is clear that two points taken for consideration is no longer res integra and the judgments are squarely applicable to the facts of the present case.
14. In the above said circumstances, applying the ratio mentioned in the judgments relied on by the learned counsel for the respondent, this Civil Revision Petition is not maintainable.
15. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
To The 1st Additional District Judge, Madurai..